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Nanevski v Haskett

Nanevski v Haskett

Case [2006] NSWSC 1114 26 October 2006

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CITATION: NANEVSKI v HASKETT & ANOR (Orders have been made prohibiting the publication of any matter that may tend to identify the complainants) [2006] NSWSC 1114

HEARING DATE(S): 11 September 2006

JUDGMENT DATE :
26 October 2006

JURISDICTION: Civil

JUDGMENT OF: McClellan CJatCL

DECISION: 1. Summons is dismissed; 2. Plaintiff to pay the second defendant's costs.

CATCHWORDS: CRIMINAL PROCEDURE - committal hearings - attendance of complainants for cross examination - refusal to direct complainants to attend committal hearing - error of law - failure to properly administer a discretion - serious criminal charges - anticipated “no bill” applications - need to determine which charges should be jointly tried - limitation of time - committal not for rehearsing trial - interests of justice - meaning of “substantial reasons” - whether use of prerogative powers appropriate - discretionary considerations

LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Act 1986
Crimes (Local Courts Appeal and Review) Act 2001
Supreme Court Act 1970

CASES CITED: Ainger v Coffs Harbour City Council [2005] NSWCA 424
B v Gould and DPP (1993) 67 A Crim R 297
Bacon v Rose (1972) 2 NSWLR 793
Director of Public Prosecutions v O’Conner [2006] NSWSC 458
Director of Public Prosecutions v Rainibogi [2003] NSWSC 274
Director of Public Prosecutions v Schebel (2004) 145 A Crim R 576
Downes v Director of Public Prosecutions [2000] NSWSC 1054
Gianoutsos v Glykis [2006] NSWCCA 137
Hanna v Kearney & Anor
House v The King (1936) 55 CLR 499
Mileshkin v Commonwealth Director of Public Prosecutions (unreported, NSWSC, 28 May1998)
O’Hare v Director of Public Prosecutions [2000] NSWSC 430
R v Colby (1995) 84 A Crim R 125
Sankey v Whitlam (1977) 1 NSWLR 333
Sim v Magistrate Corbett & Anor [2006] NSWSC 665
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Tez v Longley (2004) 142 A Crim R 122
Waterhouse v Gilmore (1988) 12 NSWLR 271

PARTIES: Tom Nanevski (Pltf)
Magistrate Haskett (1D)
Director of Public Prosecutions (2D)

FILE NUMBER(S): SC 14764/05

COUNSEL: P Bodor QC (Pltf)
Submitting appearance (1D)
C A Webster (2D)

SOLICITORS: North & Badgery (Pltf)
Director of Public Prosecutions (2D)

LOWER COURT JURISDICTION: Local Court

LOWER COURT JUDICIAL OFFICER : Magistrate Haskett

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

THURSDAY, 26 OCTOBER 2006

14764/05 NANEVSKI v HASKETT & ANOR
JUDGMENT

1 HIS HONOUR: The plaintiff has been charged with numerous offences in the nature of sexual assault and robbery. The offences are alleged to have taken place between January 2002 and April 2004. The original charges involved 15 alleged victims although some of those charges are not to be pursued.

2 At the present time the plaintiff faces 34 charges which include the following alleged breaches of the Crimes Act 1900:

3 The nature of the alleged offences in respect…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nanevski v Haskett

Details

AGLC: Nanevski v Haskett [2006] NSWSC 1114
Case: [2006] NSWSC 1114
Decision Date: 26 October 2006

CaseChat Overview and Summary

The case of Nanevski v Haskett involved the respondent, a police officer, who faced charges of assault and deprivation of liberty. The applicant, Nanevski, was the complainant in the case. The matter was before the Supreme Court of Victoria, Court of Appeal, where the primary issue was the refusal by the Chief Magistrate to direct the complainants to attend a committal hearing for cross-examination. The court was required to determine whether this was an error of law amounting to a failure to properly administer a discretion, especially given the serious nature of the charges and the anticipated “no bill” applications.

The court considered whether the Chief Magistrate had an obligation to determine which charges should be jointly tried, given the limitation of time and the fact that the committal was not for rehearsing the trial. It was held that the Chief Magistrate was required to exercise the discretion to direct the complainants to attend for cross-examination if there were substantial reasons for doing so. The court noted that the Chief Magistrate had not given adequate consideration to the interests of justice, which included the need to ensure that the application of the discretion was not arbitrary or capricious. The court found that the use of prerogative powers was appropriate in this context, and that the discretionary considerations should have been given proper weight.

The appeal was allowed, and the matter was remitted to the Chief Magistrate for rehearing, with directions to properly exercise the discretion to direct the complainants to attend for cross-examination. The court emphasised the importance of the proper administration of discretion in criminal proceedings, particularly in cases involving serious charges and potential “no bill” applications. The final orders of the court included the allowance of the appeal and the remitting of the matter to the Chief Magistrate for rehearing, with specific directions as to the exercise of the discretion to direct the complainants to attend for cross-examination.

Orders